Muriuki v Muriithi (Civil Appeal E067 of 2021) [2024] KEHC 5749 (KLR) (9 May 2024) (Judgment)
Neutral citation:
[2024] KEHC 5749 (KLR)
Republic of Kenya
Civil Appeal E067 of 2021
DKN Magare, J
May 9, 2024
Between
Stephen Njogu Muriuki
Appellant
and
Charles Ndirangu Muriithi
Respondent
Judgment
1.This is an appeal from the Ruling and order of the Hon. Wendy Kagendo given on 30/6/2021 in Nyeri CMCC 76/2014. The Appellant Appealed on the grounds that the learned magistrate erred in law and fact:a.In failing to appreciate the reasons advanced by the Appellants for the delay in prosecuting their respective matters in the learned magistrate.b.By holding that the Appellants had not furnished a plausible reason for the delay in prosecuting their respective matters.c.In relying on Order 17 Rule 5 of the Civil Procedure Rules to dismiss the case.d.Disregarding the submissions by the Appellants.
2.The Appellant as such prayed for reliefs that the Ruling dated 30th June 2021 be set aside and replaced with an Order allowing the Appellant’s Application dated 23rd February 2021 with costs, reinstating the primary suit to hearing.
Pleadings
3.In the Plaint dated 10th March 2014, it was pleaded that on 3rd August 2013, the Appellant was travelling as a passenger in Motor Vehicle Registration No. KBD xxxJ Matatu at Kiawara Market on Nyeri-Nyahururu Road when the Respondent drove Motor Vehicle Registration No. KBC xxxL so negligently that it lost control and hit the said matatu causing the Appellant injuries.
4.The Appellant pleaded negligence on the part of the Respondent and also set out the injuries suffered. Apparently there was a test suit filed which stayed the matter pending determination of the test suit. Subsequently, there was a test Appeal, being Nyeri HCCA 15 of 2015. It was determined in 2019.
5.Upon issuance of what it considered notice, the then chief magistrate dismissed this suit on 22/6/2020. The reason was that the suit remained unprosecuted since 2014. Pursuant to section 60(1)(0) of the Evidence Act, I note, as a matter of general notoriety that the dismissal was done at the height of Covid-19 pandemic.
6.The Appellant to set aside was filed an Application dated 23rd February 2021 seeking to reinstate the suit. This was towards the tail end of the pandemic. As such I shall not consider the delay between dismissal and application as of any consequence. I should be recalled that until 31/7/2021, there were severe restrictions on movement and lockdowns in courts. It was never business as usual. There was no action taken since 30/9/2014. There was no other action until the matter was placed for dismissal on 29/6/2020. After dismissal the mater went to sleep until 2/3/2021, a period of 9 months later. The application sought the following prayers: -a.That this Honourable Court be pleased to set aside orders issued on 22/6/2020 dismissing the suit for want of prosecution.b.The Honourable court issue are order reinstating the suit for a hearing and determination on merit.c.Costs be provided for.
7.The delay was attributed pending of a test suit Nyeri HCCA 15/2015 Charles Ndirangu Muriithi v Paul Ogomonyayo, being CMCC Suit No. 78 of 2013 Paul Ogoma Ongayo v Charles Ndirangu Muriithi.
8.It was the Appellant’s case that the test suit was concluded on 23/4/2015. There was an Appeal preferred by the Respondent herein which was decided on 20/12/2019 affirming liability of the Respondent. The the period of delay was less than 1 year to 22/6/2020. The delay in filing the Application that was dismissed was equally less than one year. Cumulatively it is less than 2 years.
9.The Appellant stated that they then moved the lower court to set the suits down for directions only to establish that the suits had been dismissed for want of prosecution. The Appellant made the Application to set aside. This resulted in the current Appeal.
10.The Respondent opposed through grounds dated 18/3/2021. The respondent stated that he could have forgotten crucial details luckily for the Appellant, he did not oppose pendency of the test suit.
11.The court stated that there was no satisfactory explanation given. The delay of 6 years is inexcusable and as such dismissed the Suit for want of prosecution.
Submissions
12.The Appellant filed submissions dated 29th January 2024. They submitted that the learned magistrate erred in its finding that the Appellant had not rendered a plausible reason for the delay in prosecution the suit.
13.That the reason was well documented to have been occasioned by the existence of the High Court Civil Appeal No. 15 of 2015 on liability in the test suit and which liability would be used in determining the liability of this suit and other suits in the series. They relied on the case of Naftali Opondo Onyango v National Bank of Kenya (2005) eKLR. They submitted that the Appellant was not notified prior to the dismissal of the suit and the dismissal stated to be under Order 17 Rule 5 was improper and untenable as such a law did not exist. I was urged to allow the Appeal.
14.On the part of the 1st Respondent it was submitted that the learned magistrate was correct in its finding and the Appeal was as such not meritorious. They submitted that no plausible reason was offered for the reinstatement of the suit and the Application was filed 8 months after the dismissal of the suit as per Order 17 Rule 2 of the Civil Procedure Rules.
15.It was their case that the Appellant had the obligation to advance the overriding objective and which they failed. Reliance was placed on Sections 1A (3) the Civil Procedure Act and the case of John Maina Mburu t/a John Mburu & Co. Advocates v George Gitau Munene, Milimani High Court Civil Suit No. 265 of 2011. I was urged to dismiss the Appeal.
Analysis
16.The appellant filed a memorandum of Appeal and set forth 6 grounds. This were unnecessarily long. Order 42 Rule 1 of the Civil Procedure Rules provides are hereunder: -
17.The Court of Appeal had this to say about compliance with Rule 86 of the Court of Appeal Rules (which is pari materia with Order 42 Rule 1 of the Civil Procedure Rules) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -
18.In the case of Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the Court of Appeal observed that: -
19.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a learned magistrate, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
20.Luckily for the parties, there were no witnesses heard. The court thus has a wide latitude in that respect. In the case of Sugut v Jemutai & 3 others (Civil Appeal 110 of 2018) [2023] KECA 202 (KLR) (17 February 2023) (Judgment), Kiage JA, stated as follows: -
21.In the case of Mbogo and Another v Shah [1968] EA 93 where the Court stated:
22.The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another v Associated Motor Board Company and Others [1968] EA 123, where the law looks in their usual gusto, held by as follows;-
23.The Court is to bear in in mind that it had neither seen nor heard the witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.
24.In the case of Peters v Sunday Post Limited [1958] EA 424, court therein rendered itself as follows:-
25.The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya v Republic [1957] EA 336 is as follows: -
26.In Fidelity & Commercial Bank Ltd v Kenya Grange Vehicle Industries Ltd (2017) eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as hereunder: -
27.In Prudential Assurance Company of Kenya Limited v Sukhwender Singh Jutney and Another, Civil Appeal No. 23 of 2005 the Court citing a passage in Odgers Construction of Deeds and Statutes (5th edn.) at p.106 emphasized that in construing the terms of a written contract;
28.The learned magistrate and this court will similarly construct documents as there are no witnesses required to know the content of a document. Therefore, where the findings of the learned magistrate are consistent with the evidence generally, this Court should not interfere with the same.
29.On the face of the Application, the delay is inordinate. However, the court did not address the question of stay pending the test suit and subsequently, the test Appeal, Nyeri HCCA No.15 of 2015.
30.Of importance, there was no factual contestations. The Respondent filed grounds of opposition to the impugned Application. By filing grounds of opposition, the respondent was conceding to factual matrices. In effect there were no disputation on the fact. The only issue, to them was whether, the facts as set out in the Application were reason enough for the ‘inordinate’ delay.
31.It is worthy noting that it is the court that stayed the suit pending determination of a test suit. The parties, especially the Appellant have no say to the said delay. The period of delay was therefore only 9 months. Dismissal under Order 17 Rule 5 could not apply to a stayed suit. We were not told by the Appellant, who is a party to the test suit, when they informed the Appellant the outcome of the Test Appela.
32.I agree with the appellant in their submissions relying on the case Naftali Opondo Onyango v National Bank of Kenya [supra] where the court stated as follows: -
33.It should be remembered that dismissal of suits is meant to rid the court of cases that were filed and left in some corner. It is a way of getting rid of un-necessary backlog. The test on dismissal of suits for want of prosecution was laid in Mwangi S. Kimenyi v Attorney General and Another, [2014] eKLR, when the court restated the test as follows:-1.When the delay is prolonged and inexcusable, such that it would cause grave injustice to the one side or the other or to both, the court may in its discretion dismiss the action straight away. However, it should be understood that prolonged delay alone should not prevent the court from doing justice to all the parties- the plaintiff, the defendant and any other third or interested party in the suit; lest justice should be placed too far away from the parties.2.Invariably, what should matter to the court is to serve substantive justice through judicious exercise of discretion which is to be guided by the following issues; 1) whether the delay has been intentional and contumelious; 2) whether the delay or the conduct of the Plaintiff amounts to an abuse of the court; 3) whether the delay is inordinate and inexcusable; 4) whether the delay is one that gives rise to a substantial risk to fair trial in that it is not possible to have a fair trial of issues in action or causes or likely to cause serious prejudice to the Defendant; and 5) what prejudice will the dismissal cause to the Plaintiff. By this test, the court is not assisting the indolent, but rather it is serving the interest of justice, substantive justice on behalf of all the parties.”
34.The object of the court is to achieve justice for both parties. In Kamlesh Mansukhalal Damki Patni v Director of Public Prosecution & 3 Others [2015] eKLR, the Court of Appeal posited as hereunder: -
35.The purpose of the existence this Court is this to do justice to both parties. In Harris Horn Senior, Harris Horn Junior v Vijay Morjaria Nyeri Civil Appeal No. 223 of 2007 when confronted with similar arguments, the Court made observations therein inter alia as follows:(32)As for the need to do justice to the parties before it, we have no doubt that this is the core business of the Court. However, a court of law cannot ignore principles of substantive law or case law governing the particular aspect of justice sought from its seat. Its primary role is to ensure that the justice handed out is kept anchored on both the law and the facts of each case.”
36.It is not the responsibility of this court to be mechanical and ignore clear cases of injustice. I find that the test suit has been determined on the basis of 100% liability as against the Respondent. The only question remaining is medical evidence for purpose only of quantum.
37.There is no loss the Respondent will suffer as their fate was sealed not by this court but the court hearing the test suit. Hearing the matters will not therefore prejudice the Respondents. In Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR this Court stated: -
38.In this matter the delay was properly explained. The Respondent knew the status of the test suit but did not produce any contradictory evidence. In the case of Nesco Services Limited v CM Construction [EA] Limited [2021] eKLR, justice G V Odunga as then he was stated as doth:41.Since the said author was for reasons unknown to the Court not called to testify and dispute its authenticity, adverse inference could be made thereon. In Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 others [2012] eKLR the court stated as follows:
42.The court will and shall presume that such evidence, if produced will be against the Appellant. In The circumstances obtaining in this matter was that there was no basis for dismissal.
43.I note, with concern that some defendants use the aspect of the test suit to delay the matters in court in vain hope that they will be subsequently dismissed. Courts granting an order for test suit must include a fail-safe order for the conclusion if the test suit within specific time frames.
44.In the circumstances the court fettered its discretion in failing to tackle the aspect of the test suit. The test suit was imposed on the Appellant and cannot be used against them. They have no control over the same. I find the Appeal merited and I allow the same.
45.The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: -(18)It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the Respondent or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.
46.The delay was occasioned by both sides in having an unnecessary test appeal and the Respondent for not being candid to the court. The order therefore recommends itself is for each party to bear cost of the Appeal and the Application dated 22/2/2021.
Determination
47.In the circumstances I issue the following orders: -a.The appeal is allowed.b.The order given on 30/6/2021 is hereby set side and in lieu thereof I substitute with an order setting aside the dismissal of the suit and reinstating the same for hearing.c.The suit shall be heard and determined by 15/5/2025, failing which it shall stand dismissal with costs to the Respondent.d.The matter shall be placed before the chief magistrate who shall allocate courts to hear the matter.e.Consequently, this file shall be placed before the chief magistrate for directions on 25/5/2024.f.This file is closed.g.The lower court file be returned forthwith.
DELIVERED, DATED AND SIGNED VIRTUALLY ON THIS 9TH DAY OF MAY, 2024. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Patrick Law Associates Advocates for the AppellantJ K Kibicho & Co. Advocates for the Respondent